Challenge The Roadside Tests

THE ROADSIDE TESTS EXPLAINED

The Roadside Tests, known in the legal community as "Field Sobriety Exercises" were developed as a means for testing a person's level of impairment by alcohol or drugs. The common misconception is that these are "pass" or "fail" tests. The reality is that the Officer decides whether or not you "pass' or "fail" based solely on his or her opinion.

The standard is whether or not the subject's "normal faculties" are impaired. Florida law defines normal faculties as the ability to see, hear, walk, talk, act in emergencies, make judgments, judge distances, drive an automobile, and in general, to perform the many mental and physical tasks of our everyday lives. The Officer will make these tests look easy during his/her demonstration, but beware; the Officer has practiced these tests hundreds or even thousands of times. These tests are "divided attention tasks" and are very difficult to perform under any circumstance. The explanations come fast, the pressure to perform is intense, there are no opportunities to practice and the price for failure is an arrest.

There is no legal requirement for you to participate in the Roadside Tests and most DUI Attorneys recommend refusing them due to the high level of difficulty. If you refuse, the worst thing that can happen is that the refusal can be used against you in court. There are no additional penalties for refusing the Roadside Tests. A DUI Lawyer knows how these tests should be conducted and can file motions attacking the officer's instructions and demonstrations.

There are 6 basic tests which are conducted by Law Enforcement Officers. They are:

THE 9-STEP WALK AND TURN

Description:
This one requires the subject to stand "at attention" with one foot in front of the other while the instructions are read. Little does the subject know that he or she is already being graded by the Officer. Then the Officer says to start and the subject must walk exactly 9 steps on a straight line, heel to toe, with their arms by their side, complete a very specific turn, and then back to the start position.

Grading:
The Officer is looking for the following:
• Did the subject have difficulty following the instructions?
• Did the subject do the exact number of steps?
• Did the subject lose their balance?
• Did the subject stop due to problems or the need for reinstruction?
• Did the subject step off the line?
• Did the subject start before the instructions were finished?
• Did the person touch heel to toe on every step?
• Did the person turn improperly?

THE ONE LEG STAND

Description:
99% of people surveyed say this is the most difficult of the tests. This one requires the subject to again stand "at attention" with the feet together and arms by their side. The subject must then lift the leg of their choice and hold it 6 inches off the ground for 30 seconds.

Grading:
The Officer is looking for the following:
• Did the subject sway while balancing on one leg?
• Did the subject use their arms for balance?
• Did the subject hop?
• Did the subject put their foot down?
• Did the subject have difficulty following the instructions?
• Did the subject stop due to problems or the need for reinstruction?
• Did the subject start before the instructions were finished?

THE FINGER TO NOSE

Description:
The subject is required to stand "at attention" with the feet together, eyes closed and head tilted back. The officer calls out "left" and "right" and the subject must respond by touching the corresponding finger to the tip of the nose.

Grading:
The Officer is looking for the following:
• Did the subject's eyes remain closed?
• Did the subject fail to return their arm to their side?
• Did the subject miss the tip of the nose?
• Did the subject use the wrong hand?
• Did the subject have difficulty following the instructions?
• Did the subject stop due to problems or the need for reinstruction?
• Did the subject start before the instructions were finished?

THE ALPHABET TEST

Description:
The good news is that you don't have to say your ABC's backwards. The subject is required to stand "at attention" with the feet together and the eyes closed. Upon the Officer's command, the subject must recite the alphabet from A to Z without "singing" or "chanting".

Grading:
The Officer is looking for the following:
• Did the subject's eyes remain closed?
• Did the subject sway more than 2 inches?
• Did the subject use arms for balance?
• Did the subject incorrectly recite the alphabet?
• Did the subject have difficulty following the instructions?
• Did the subject stop due to problems or the need for reinstruction?
• Did the subject start before the instructions were finished?

THE COUNTING TEST

Description:
The test is conducted in a manner similar to the alphabet test. However the person is usually required to count backwards from one number to another. The Officer will choose difficult numbers like "92" to "68". This test is also conducted while standing "at attention" with the feet together and the eyes closed.

Grading:
The Officer is looking for the following:
• Did the subject's eyes remain closed?
• Did the subject sway more than 2 inches?
• Did the subject use arms for balance?
• Did the subject incorrectly recite the numbers?
• Did the subject keep going past the number they were supposed to stop at?
• Did the subject have difficulty following the instructions?
• Did the subject stop due to problems or the need for reinstruction?
• Did the subject start before the instructions were finished?

HGN

Description:
The Horizontal Gaze Nystagmus is a scientific test. The Officer has the subject stare at a pen or a small light and requires them to follow it with their eyes but not their head. The belief is that an Officer can calculate how much alcohol is in your system just by watching your eyes. Very few Officers in the State of Florida are qualified to conduct this test so the results are often excluded from your case.

DEFENSES TO THE ROADSIDE TESTS

The Videotape
A majority of the DUI Investigators in the Tampa area are now equipped with video cameras for the purpose of taping the Roadside Tests. This video can be your worst enemy or your best friend. The video will show how you really did on the tests and it will prevent the officer from exaggerating. Furthermore, the video often is in direct contradiction to what the Officer puts in the Police Report. The State is required to provide a copy of the video to your attorney. One of the best defenses in a DUI case is using the video against the Police Officer.

The Weather
Those of us living in Florida are more than familiar with the fast moving weather patterns of our state. Heat, wind, and rain are often a part of our daily routines. The weather can play a factor in the performance of your Roadside Tests.

The Location
Location is another major factor in evaluating your Roadside Test defense. Some of the location factors are as follows:
• Traffic - Were you forced to do your tests within feet of the roadway with cars driving by?
• Police Cars - Were there 2 or 3 Police cars present with all of their flashing lights on?
• Flat and Level Surface - Was the ground really as flat and level as the Officer says?

The Officer's Skill Level
• Improper Instructions - Did the Officer make mistakes while instructing you?
• Improper Demonstration - Did the Officer make mistakes in the demonstration?
• Reading of Your Rights - For the counting and alphabet tests to be valid the Officer must first read you your rights.